In re Raymond A.



















Filed 4/3/13 In re Raymond A. CA2/7









>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

>



California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
SEVEN




>

In re RAYMOND A., a Person Coming Under the Juvenile Court Law.	B243103 (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RAMONA A., Defendant and Appellant.	Super. Ct. No. CK83294)

APPEAL from orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. D. Zeke
Zeidler, Judge. Affirmed.

John Cahill and Aida Aslanian, under
appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.

INTRODUCTION

The juvenile court declared two-year-old Raymond A. a
dependent of the court pursuant to Welfare and Institutions Code section 300,
subdivision (b)href="#_ftn1" name="_ftnref1"
title="">[1]
and ordered reunification services
for the child’s mother. Over the next 18
months, mother repeatedly used methamphetamine, was arrested on multiple
occasions and failed to comply with the court’s case treatment plan. The juvenile court terminated reunification
services and set a hearing on the termination of parental rights pursuant to
section 366.26.

On the morning of the section 366.26 hearing, mother
filed a section 388 petition arguing that the juvenile court should reinstate
reunification because she had completed a drug treatment program and obtained
housing. The juvenile court summarily
denied the petition, terminated parental rights and selected adoption by
maternal grandparents as the child’s permanent plan.

Mother appeals the juvenile
court’s orders, arguing that: (1) she was entitled to a hearing on her section
388 petition; and (2) the juvenile court erred by not applying the beneficial
parental relationship exception to parental termination. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

>A. >Events
Preceding DCFS’s Section 300 Petition

In November
of 2009, DCFS received a referral alleging “general neglect by” Ramona A., the
mother of two-year-old Raymond A.href="#_ftn2"
name="_ftnref2" title="">[2] The referral alleged that mother was using
drugs and reported that Raymond had been bitten by a dog. During a voluntary “Up Front Assessment,”href="#_ftn3" name="_ftnref3" title="">[3] mother, then 26, informed
a social worker that she had a history of using marijuana and methamphetamine
and that her son had been “severely bit[ten] by the family dog.” Mother also admitted that she had experienced
serious depression, serious anxiety and had been previously hospitalized in a
psychiatric facility.

Mother
agreed to participate in a “voluntary family maintenance” plan (VFM plan) that
included random drug testing, drug rehabilitation and individual
counseling. Between November 2009 and
May 2010, mother passed two drug tests and missed six others. Mother also failed to attend any of the drug
treatment services to which she had been referred.

In June of
2010, a team decision meeting (TDM) was held to address mother’s refusal to
comply with the VFM plan. Mother was
informed that “a missed [drug] test was a dirty drug test and if she failed to
comply with the case plan, her child would be taken from her custody and
placed with her parents.” Mother agreed
to enroll in an out-patient drug treatment program within one week, continue
drug testing and begin individual counseling.
Although mother was given another referral to a drug treatment center,
she did not attend the program and missed three drug tests in June and July.

On July 19, 2010,
DCFS visited the mother, who lived with her parents (the child’s maternal
grandparents), and took the child out of her custody. DCFS informed the mother that it was placing
the child in the custody of the maternal grandparents and that she had to leave
the home.

>B. >Section
300 Petition and Detention Hearing

On July 21, 2010, DCFS filed a petition
alleging that Raymond A. fell within the jurisdiction of the juvenile court
pursuant to section 300, subdivision (b).
The petition included two allegations under subdivision (b). The first allegation stated that mother “has
a five year history of substance abuse, including amphetamine, marijuana and
alcohol, which renders the mother incapable of providing regular care and
supervision of the child. The mother has
a criminal record of a conviction of Possession Of Controlled Substance
Paraphernalia. . . . The mother’s substance abuse endangers the child’s
physical and emotional health and safety and places the child at risk of
physical and emotional harm and damage.”


The second
allegation asserted that mother “has mental and emotional problems including a
diagnosis of Major Depressive Disorder, Recurrent with Anxiety Disorder
Features, which render the mother incapable of providing regular care and
supervision of the child. On prior
occasion, the mother was hospitalized for the evaluation and treatment for the
mother’s psychiatric condition. The
mother’s mental and emotional problems endanger the child’s physical and
emotional health and safety and places the child at risk of physical and
emotional harm and damage.”

In support of the petition, DCFS
filed a detention report that summarized mother’s failure to comply with the
prior VFM plan. The detention report
stated that although mother lived with the maternal grandparents, she had left
the home and her whereabouts was unknown.
Mother had previously informed a social worker that she was unsure of
the father’s identity because she was “involved with two men . . . and d[idn’t]
know who the father was.” According to
the maternal grandfather, the child had “always been living in their home, so
there [would be] no adjustment problem for the child.”

The report also indicated that, between January of
2005 and September of 2007, mother had been arrested six times, resulting in
felony convictions for burglary and false impersonation and a misdemeanor
conviction for possession of controlled substance paraphernalia. The remaining three arrests included two drug
charges, which were both dismissed in the interests of justice, and a grand
theft charge for which no disposition was reported.

DCFS concluded that, based on
mother’s “non compliance with her VFM case[,] there [was] a ‘high’ risk of
future abuse” and recommended “continued detention and placement of the child”
with the maternal grandparents.

At the detention hearing, the court appointed separate
attorneys for Raymond and his mother.
The mother agreed to “submit on detention” and the maternal grandparents
confirmed that they were willing to adopt the child if the mother and father
were unable to “do what they need to get the child back.”

The court ruled that there
was prima facie evidence that the “child [was] a person described by Welfare
and Institutions Code 300 section (b)” and ordered that the child was to remain
“detained with the maternal grandparents . . . pending disposition.” The court ordered DCFS to provide “family
reunification,” including monitored visitation, and to “present due diligence
in attempting to locate Father.” The
court then set the matter set for a contested jurisdictional and dispositional
hearing.

>C. >Jurisdictional
Hearing

>1.
Summary
of the “Jurisdictional/Disposition Report”

On August 23, 2010, DCFS filed a
“Jurisdiction/Disposition Report” summarizing various interviews that had been
conducted since the detention hearing.
DCFS had scheduled to meet with mother at the maternal grandparents’
home, where mother had resided for all “26 years of her life [with] . . . four
biological sisters.” However, when DCFS
arrived for the interview mother was not present. The maternal grandmother told DCFS that she
believed mother was “currently sleeping in her car for shelter.”

The maternal grandmother also informed DCFS that, on
August 10, 2010, mother had broken into the maternal grandparents’ home by
breaking a window and disarming the alarm.
Mother took a shower and ate some food before her sister told her to
leave the premises. Mother initially
refused to leave and then stole the sister’s car battery and various items of
clothing. The maternal grandmother told
DCFS that she had contacted the police, who were investigating the matter, and
that the mother had not returned to the home since the break-in.

When DCFS asked the maternal grandmother why she “felt
that her daughter” had broken into the house, she responded “‘Because she’s on
drugs and has mental health issues.’”
The maternal grandmother also stated that mother “would bring her
boyfriend into the home and they would fight constantly and argued and it was
dangerous for the [child].” Maternal
grandmother reported that mother had bruises on her arms “because [her
boyfriend] beats her up and she spends all her [welfare] . . . money on him to
buy drugs.”

When asked how the child was
“adjusting to his placement,” the maternal grandmother stated that “‘he doesn’t
know the difference because I was always taking care of him anyway. His mother would run off so much and leave
for days without checking on him. Even
now she barely visits and when she does she just wants to take a shower, eat
and barely looks at [the child].’”

The maternal grandmother also stated that she had
never contacted DCFS regarding the child because mother “would threaten to take
her grandson and leave the home and never return if she attempted to report
her.” Mother also “threatened to take
[the child] away from the family if [the maternal grandmother] showed any
social workers [mother’s] room, which [wa]s located outside of the home,
attached to the garage.” The maternal
grandmother permitted DCFS to enter mother’s room, where a social worker
observed “a broken window, rotten food, trash and hazardous poisons such
as roach spray out in the open. [The
social worker] also observed empty beer bottles, dirty clothes piled up in the
corner and empty water bottles filled with urine.”

The
maternal grandmother reported that mother had “severe mental health issues,
including having violent outbursts, mood swings, and depression.” She also alleged that mother could be
“‘dangerous at times,’” and believed that mother’s substance abuse was “related
to her lack of mental health treatment.”
According to the maternal grandmother, mother “continue[d] to use
methamphetamine and alcohol and [wa]s in desperate need of a substance abuse
program.”

DCFS also interviewed a href="http://www.fearnotlaw.com/">“Family Preservation Worker” who had
overseen the mother’s VFM plan prior to the child’s detention. The worker told DCFS that it was “unfortunate
what happened . . . especially because we offered the mom . . . so much help. She just continued to promise and promise to
complete her programs and rarely followed through with anything.”

Although DCFS was not able to interview the mother,
the detention report indicated that mother had previously told a Family
Preservation social worker that she experienced “feelings of depression,
anxiety and trouble controlling violent behavior. [She] also reported having a
seven year history of mental health issues which include[d] attempted suicide,
anxiety depression, and psychiatric hospitalizations.” Mother admitted “to having a history of using
methamphetamine and marijuana,” but stated that she did not have “any problems
. . . in terms of addiction, and stated that she [did] not see a need for
alcohol or drug treatment.”

The DCFS report also stated that the
child “ha[d] . . . adjusted very well to his current placement residence
and appear[ed] to be very attached to his maternal grandparents.”

In its
assessment and evaluation, DCFS concluded that, since November of 2009, mother
had been “offered 9 months of voluntary services through DCFS and ha[d] failed
to comply with drug testing, substance abuse recovery and other services for
the entire 9 months. . . . [Mother] . . . continued to make false promises and
insist[ed] that she [wa]s being treated unfairly by [DCFS] despite multiple
efforts and interventions from DCFS and Family Preservation to assist . . .
with her addiction and mental health issues.”
DCFS
recommended that the juvenile court declare the child a dependent of the court
and provide reunification services, including “random drug testing, inpatient
substance abuse treatment and individual counseling to address mental health
and domestic violence issues.”

A jurisdictional hearing was held on September 1,
2010, but the mother failed to attend.
Although the court allowed three continuances, mother failed to attend
any of the hearings. At a hearing on
October 7, 2010, mother’s attorney reported that he had provided mother oral
and written notice of the hearing and was unsure of her whereabouts. The attorney requested one final continuance,
but the trial court denied the request, explaining that mother had “many
opportunities and has been given notice before.”

After receiving the
detention and jurisdictional reports, the court ruled that “the petitioner
ha[d] met their burden by a preponderance of evidence as to mother. B-1, B-2 of the petition will be found to be
true as sustained.” The court declared
the child a dependent of the court and ordered mother to complete “a drug
rehabilitation program with random testing, weekly;” “a parenting education
course”; “individual counseling to deal with mental health issues” and
“domestic violence” counseling. The
court declined to provide the child’s father reunification services because DCFS
had been unable to locate him.href="#_ftn4"
name="_ftnref4" title="">[4]
The court allowed mother three monitored visits per week and set a six-month
reunification review hearing pursuant to section 366.21, subdivision (e).

>D. >Interim Status Hearings

>1.
Section 366.21, subdivision
(e) six-month review hearing

On April 1,
2011, DCFS provided a status report for the six-month review hearing. The report stated that mother had been
incarcerated in October of 2010 and had remained in custody until March of
2011. While in prison, mother had
“sought out programs to help her complete with Court orders.” However, following her March release, mother
had not “enroll[ed] in any Court ordered programs.” DCFS reported that although mother displayed
“emotions in regards to her . . . case[,]
. . . she ha[d not] address[ed] these issues formally in therapy” and
continued to behave in a disrespectful manner when visiting the maternal
grandparents’ home.

DCFS also
reported that Raymond, then three-years-old, was developmentally “on-track”,
“very smart” and “loved to talk.”
Although the maternal grandparents took the child to visit his mother in
prison every other week, the visits caused the child to cry and have
“difficulty sleeping.” After the visits,
the child would “state that . . . mommy didn’t love him or want[] to be with
him.”

To address
these issues, the child began receiving “in-home therapy” in March of
2011. The in-home therapist informed
DCFS that the child was “not doing well . . . because he has separation anxiety
and is in a frenzy from his mother being in and out of his life so often.” The therapist further reported that,
following her release from prison, mother frequently visited the child in the
maternal grandparents’ home. According
to the therapist, however, the visits were “not . . . very strong” because
mother “w[ould] come to the house and talk on the phone and not devote all of
her attention to her son.” DCFS observed
several of these in-house visits and concluded that mother and child appeared
to “have a strong bond” and that mother displayed a “loving [attitude] towards
[the child.]”

DCFS conducted a risk assessment that “yielded results of
very high” and recommended that the court order “6 additional months of Family
Reunification Services.” The court
entered an order continuing jurisdiction over the child and leaving the case
plan in effect.

>2.
July
2011 interim report

On July 6, 2011, DCFS filed an
“Interim Status Report” informing the court that, on May 20, 2011, a TDM was
held to “address visitation issues and [mother’s] lack of compliance with the
case plan.” Although mother was informed
of the meeting and was offered transportation, she did not attend. At the TDM, it was decided that mother would
be “referred to additional in-patient rehabilitation programs” after having
been discharged from her current program “for lack of participation.” The report indicated that, since April,
mother “ha[d] remained homeless and [wa]s . . . not participating in any of
Courts orders.” DCFS met with mother and
offered to enroll her in a rehabilitation program in Pomona. Mother became “upset,” stated that DCFS could
not “make her” attend an out-patient program and “stormed out of the
building.”

DCFS also reported that mother’s
“visitation [rights] had been changed . . . due to an incident that took place
at the home in which [mother] threatened to kill her younger special needs
sister and physically attacked her.”
DCFS reported that this behavior was consistent with other “violent
outbursts” it had observed, which frequently “occur[red] in the presence of the
child.” After the incident with mother’s
sister, DCFS required that the visits occur in a nearby park. However, “the visits at the park . . . also
resulted in angry outbursts and [mother] becoming very emotional and crying and
screaming at end of the visits which upset [the child].” At the TDM, it was decided that the visits
should occur at the DCFS office, under the supervision of a social worker. A DCFS social worker had monitored three in-office
visits and was “constantly” forced to tell mother “that she is not to become
emotional in front of her son as he starts crying and has a difficult
time.”

In its assessment and evaluation,
DCFS concluded that mother had “declined severely since her release from
jail.” Although mother denied using
drugs, she exhibited signs of methamphetamine abuse, including scabs on her
face and dark circles under her eyes.
Mother also displayed extreme “mood swings” and “highly irregular”
behavior that included “violent and unpredictable” outbursts. According to DCFS, mother “d[id] not display
a desire to stop using drugs and claim[ed] to not be using drugs . . . Further she ha[d] failed to provide any drug
tests to [DCFS,] . . . was terminated from her substance abuse program due to
her lack of participation” and remained “out of compliance with her Court
ordered case plan.” DCFS requested that
the court issue a restraining order prohibiting mother from the maternal
grandparents’ residence and recommended that it terminate reunification
services and set a section 366.26 hearing for termination of parental
rights.

At the status
hearing, which the mother did not attend, the child’s maternal grandparents
confirmed that they were willing to adopt the child. The court ordered DCFS to initiate an
adoptive home study on the grandparents and required that all future visits
between mother and child occur at a DCFS office. A twelve-month permanency hearing was set for
October 7, 2011. (See § 366.21, subd. (f).)


>3.
Section
366.21, subdivision (f) permanency hearing

On October 7, 2011, DCFS provided a
status review report for the 12-month permanency hearing. DCFS stated that, since July, mother had been
arrested again and was temporarily placed in jail. In addition, mother had broken into the
maternal grandparents’ house again in August; in mid-September, “the family was
forced to call the police to remove [mother] from their property.” The maternal grandmother reported that she
occasionally saw mother “away from the family home” and suspected that she was
homeless and “using.” Mother had not visited
the child or contacted DCFS for almost three months.

As the child, DCFS reported that
Raymond was “thriving in the home of maternal grandparents . . ., attending
daycare daily and . . . doing well there. . . . [H]e makes friends easily and
is well behaved.” The child’s in-home
therapist reported that the child was “making good progress and . . . adapting
well in his grandparents home.” DCFS
stated that although it had not completed its adoption home study, it was
apparent that the grandparents “love[d] Raymond very much . . . and have cared
for him in their home since he was born.
They are attached to him and are committed to meeting his needs on a
permanent basis through adoption. . . . [He] turns to his grandparents for love
and support.”

DCFS concluded that mother had made
little if any progress since the July status report, explaining: “[mother] has
had 12 months to reunify with her son, she shows no insight to the issues that
brought her to the attention of the Department and displays paranoia and
erratic behavior. . . . [T]he Department believes [mother] will continue to be
uncooperative and disruptive to her son and at this time a permanent adoptive
plan is more appropriate for the [child].”


At the
12-month reunification review hearing, which occurred on November 2, 2011,
mother’s attorney announced that mother, who was not in attendance, had
completed a “detox program” and was “currently in a residential treatment
program.” The court set a contested
18-month permanency review hearing for January 18, 2011. (See § 366.21. subd., (g)(1).)

>4.
Section
366.21, subdivision (g) 18-month permanency review hearing

On January
5, 2012, DCFS submitted a status report for the 18-month permanency hearing
stating that mother had admitted herself to the “American Recovery Center” in
October of 2011 and completed a one-month detoxification from methamphetamine
use. Mother intended to remain at the
center for three more months and then “transition into a sober living
home.” During an interview in December
of 2011, mother told DCFS she had “cleared up” a warrant issued in September
related to methamphetamine.href="#_ftn5"
name="_ftnref5" title="">[5] According to the social worker, mother looked
“healthier and appeared to be sober,” but had still failed to obtain a
court-ordered “730 [mental] evaluation.”href="#_ftn6" name="_ftnref6" title="">[6]

DCFS also
submitted a letter from the American Recovery Center stating that mother
“appear[ed] motivated for treatment” and had made “more than adequate
progress.” The letter reported that
mother was actively participating in treatment, had “proven to be a responsible
person” and “appear[ed] sincere regarding her desire to parent her son.” The letter also stated that mother’s drug
tests had all been negative and that she had “completed addiction education,
rational thinking, relapse prevention anger management, seeking safety and
more.”

Following
her detoxification program, mother had begun having weekly, monitored visits
with the child at the recovery center.
The maternal grandparents reported that although mother was “appropriate
during [these] visits for the most part,” she occasionally “display[ed]
irrational behavior.” The grandparents
explained that, during a recent birthday party for Raymond, mother “left . . .
in tears with [the child] in her arms because she was upset that maternal
grandmother had purchased a similar gift.”
Mother requested unmonitored visits with the child, but DCFS denied the
request because it believed her “behavior remain[ed] irrational and
unpredictable.”

As to
Raymond, DCFS reported that the child continued to “do[] well in the
[grandparents’] home and [wa]s bonded to caregivers.” The grandparents told DCFS that the child was
“doing much better,” was “happy” and had no problems with eating or sleeping. His in-home therapy, which had begun in March
of 2011, was terminated in December. The
child’s therapist provided a letter explaining that Raymond had “initially
presented with anxiety symptoms related to his experience of href="http://www.fearnotlaw.com/">child endangerment. He demonstrated poor affect regulation, was
preoccupied with concern that his mother might not love him, and feared being
separated from his caregivers.” During
Raymond’s nine months of therapy, the maternal grandparents were “coached to
identify ways to soothe [the child] and create an emotionally and physically
safe environment for the child. . . .
Roles of his various family members were clarified in order to ensure
that child attachment needs were met. . .”
The therapist asserted that Raymond’s “individual treatment needs ha[d]
been met” and that he was now “much less anxious and preoccupied with concerns
about his mother’s love, and has secure relationships with family members who
meet his social emotional and developmental needs.”

In its
assessment and evaluation, DCFS stated that although mother had “been in
rehabilitation for 3 months, [the Department] remained concerned that [she] had
18 months to receive services and[,] once released from jail, . . . waited too
long to begin receiving services and instead of going to a rehab program . . . she began to use again and bounced from
friends home to friends home.” DCFS also
believed mother’s behavior “remain[ed] erratic and unpredictable,” noting that
she still “act[ed] out in front of her son . . . which [wa]s upsetting to
him.” DCFS also expressed concern that
mother: continued to “display paranoia
[that her family] [was] trying to take the minor from her”; “t[ook] no
responsibility for the circumstances that brought her into the Court”; blamed
her drug use on the fact that her child was removed from her custody; and had
not explained where she intended to go after being released from the
rehabilitation program. In light of
these concerns, DCFS recommended that the court terminate reunification
services and set a section 366.26 hearing.


At the
18-month review hearing, the juvenile court indicated that it was
“inclined to terminate reunification services” because the child had been
detained for “18 months . . . and [mother has] just been in the inpatient for
three months.” DCFS argued that
termination was appropriate given that mother had been in several “prior
programs and failed them.” It further
asserted that although mother was “complying now with the order for drug
treatment,” she had failed to comply with “mental health and domestic violence”
services.

Mother’s attorney, however, argued
that she should be provided additional time to reunify, stating: “the fact that
18 months has passed isn’t necessarily relevant when she’s doing exceptionally
well now, and she’s working her programs.
So I would ask the court to reconsider [its] tentative and provide the
mother with additional time to reunify.”


The court terminated reunification services and set the
matter for a section 366.26 hearing, explaining: “I think granting the mother further
reunification services is punitive to this four-year-old child . . . The mother
has repeatedly failed programs and to find now that she is in an inpatient
program for three months that there’s any likelihood of it being different this
go-round because its inpatient versus outpatient is a fallacy and would be
punitive to the child to delay permanence.”


>E. >Mother’s Section 388
Petition and the Section 366.26 Hearing

>1.
Section
366.26 hearing report

On April
27, 2012, DCFS filed a report for the section 366.26 hearing. In assessing Raymond, DCFS concluded that
child was “happy,” “talkative, “active” and “very comfortable with his
caregivers,” who he “s[aw] . . . in the role of parents.” DCFS reported that Raymond was “the only minor
child in a home with four adults and therefore gets a lot of attention and has
all of his basic needs met. He appears
well adjusted and comfortable in the home and with his caregivers. He was reported to have healthy eating and
sleeping habits and does not exhibit emotional or behavior problems.” DCFS also reported that “[t]he minor ha[d]
resided in the ‘caretakers] home since he was born. They . . . love him very much [and] . . .
want to adopt him so that there is not a chance that he would be able to be
placed anywhere else. They expressed
that the minor’s life comes first in the home now.”

As to the
mother, the report stated that she had been released from her in-patient drug
program in March of 2012 and had begun visiting her son on a daily basis. The grandparents reported that “[t]he visits
ha[d] gone well without incident and mother is always appropriate with
Raymond.” Although the child was aware
that mother was his “birth mother . . ., [his grandparents] ha[d] always been
the [child’s] main caregivers.”

DCFS concluded that the maternal grandparents “continue
to adequately meet [the child’s] needs and have his best interest at
heart. Their home study has been
approved and they are ready to proceed with the permanent plan of adoption.” DCFS recommended that the mother’s parental
rights be terminated and that “adoption remain the permanent plan of the
child.”

>2.
Mother’s
section 388 petition and the section 366.26 hearing

On the
morning of the section 366.26 hearing, mother filed a section 388 petition
requesting that the court modify its prior order terminating reunification
services based on changed circumstances.
In describing the “changed circumstances” that justified a modification,
mother’s petition stated: “I started working I finished my program and my
parenting certificate. I have my own
place and I am still complying with orders.”
The petition also asserted that reinstituting reunification services
would be beneficial to Raymond because “I am his mother and I believe I have changed
and done everything asked of me in order to be with my child again. And I will never give up.” The petition was unaccompanied by any
additional evidence.

At the
beginning of the section 366.26 hearing, the court noted that mother had filed
a petition “asking for the court to reinstate reunification services.” The court stated that it had denied “a
hearing on the 388 based upon the fact that it did not promote the best
interest of the child. The mother still
has unmonitored visits after two years and also that there’s no legal basis to
reinstate [family reunification] at a [section 366.26] hearing.” A subsequent written order confirmed the
court’s oral ruling, indicating that the section 388 petition had been denied
for three reasons: (1) “the propose[d] change of order . . . does not promote
the best interest of the child; (2) “no legal basis to reinstate [family
reunification] at [a section 366.26 hearing]; and (3) “mother still has
monitored visits after 2 years.”

After
ruling on the section 388 petition, the court proceeded with the section 366.26
hearing. The mother testified that,
during her visits with Raymond, they normally “played”; “watched movies
sometimes” and “just spent a lot of quality time together . . . as much as we
could.” The court asked mother to
describe what activities she did with the child that she “consider][ed] to be a
parental role[.]” Mother explained that
she was “involved in his life or was able to tell him what’s wrong, what’s
right . . . . I would ask him to count for me. . . . I always asked him to sing
his A.B.C’s and just go over the simple things that he is learning in school
right now.” Mother also stated that,
after being released from the recovery center, she visited the child for
several hours most days of the week and all day on the weekends. Her weekend activities with the child
included “play[ing] outside”, “swimming” and “eat[ing].” Mother also stated that the maternal grandparents
allowed her to give Raymond baths at their home and kept her up to date on how
the child was performing in school.
Finally, mother stated that although her parents had “pottie trained”
the child, she “was there” when some of the training occurred.

During
DCFS’s cross-examination, mother admitted that since being released from the
recovery center, she had stopped attending narcotics anonymous and alcoholic
anonymous. She also admitted that she
had recently been laid off.

After
mother completed her testimony, her attorney argued that her parental rights
should not be terminated because the evidence showed she was “exercising a
parental role with [the child] . . .
She’s very aware of [his] schooling.
She anticipates [sic] in the A.B.C’s and number counting with
Raymond. . . . She is very aware of how
Raymond is doing currently in preschool.
She does check up with the grandparents to make sure Raymond is
progressing properly and also addresses all the behavioral issues that Raymond
has in the preschool.”

Raymond’s
attorney, however, stated that she was “aligned” with DCFS’s recommendation to
terminate parental rights. The attorney
explained that “although mother had made great progress . . . [and] maintained
consistent contact, I do have concerns about mother’s stability and what this
means for Raymond. Mother testified that
although she did get laid off in May. . . [and] hasn’t continued attending
meetings. I think that due to
Raymond’s young age, it is very important for him to remain stable, and he has
remained stable with his grandparents for the last two years.” DCFS agreed, arguing that “mother hasn’t met
the exception to adoption in this case.
She visits with Raymond, but . . . she doesn’t have the parental
responsibility for him. It’s her
parents.”

The court
terminated parental rights and selected adoption as the child’s permanent
plan. The court explained that although
mother had “clearly maintained regular and consistent visitation and contact,
and . . . even has taken on a parental role during much of those visits . . .
the problem is that when it gets to balancing whether the extent of the
mother’s parental role and relationship outweighs the benefits in permanence of
adoption.”

The mother appealed the trial court’s orders denying her
section 388 petition and terminating her parental rights.

DISCUSSION

Mother raises two
issues in this appeal. First, she
contends that the trial court erred in denying a hearing on her section 388
petition. Second, she contends that the
evidence demonstrates the existence of “a beneficial [parental] relationship .
. . which would prevent the termination of her parental rights.”

>A.
>The Trial Court Did Not Abuse its Discretion
When it Denied the Section 388 Petition Without a Hearing

Mother
argues that the trial court erred when it denied her section 388 petition without
holding an evidentiary hearing. We
review this decision for abuse of discretion.
(In re Angel B. (2002) 97
Cal.App.4th 454, 460 (Angel B.); >In re Anthony W. (2001) 87 Cal.App.4th
246, 250 (Anthony W.) [“We review the
juvenile court’s summary denial of a section 388 petition for abuse of
discretion”].)

>1.
Summary
of applicable law

Section 388
provides, in relevant part: “(a) Any
parent or other person having an interest in a child who is a dependent child
of the juvenile court . . . may, upon grounds of change of circumstance or new
evidence, petition the court in the same action in which the child was found to
be a dependent child of the juvenile court . . . for a hearing to change,
modify, or set aside any order of court previously made or to terminate the
jurisdiction of the court. The petition
shall . . . set forth in concise language any change of circumstance or new
evidence which are alleged to require the change of order or termination of
jurisdiction. . . . [¶] (d) If it appears that the best interests of the child
. . . may be promoted by the proposed change of order, . . ., the court shall
order that a hearing be held . . .”

Under
section 388, “[t]he parent seeking modification must ‘make a prima facie
showing to trigger the right to proceed by way of a full hearing. [Citation.]’
[Citation.] There are two parts
to the prima facie showing: The parent
must demonstrate (1) a genuine change of circumstances or new evidence, and
that (2) revoking the previous order would be in the best interests of the
children. [Citation.].” (Anthony
W., supra, 87 Cal.App.4th at p. 250.)
Although “the petition should be liberally construed in favor of
granting a hearing to consider the parent’s request, . . . [¶] if the liberally
construed allegations of the petition do not make a prima facie showing of
[both elements], the court need not order a hearing on the petition. [Citations.]
The prima facie requirement is not met unless the facts alleged, if
supported by evidence given credit at the hearing, would sustain a favorable
decision on the petition.” (>In re Zachary G. (1999) 77 Cal.App.4th
799, 806 (Zachary G.).)

“Conclusory” allegations are insufficient to establish a
prima facie showing. (>Anthony W., supra, 87 Cal.App.4th at p.
250.) Rather, the parent must provide
“‘specific allegations describing the evidence constituting the proffered
changed circumstances or new evidence. . . .’
[Citation.] Successful petitions
have [generally] included declarations or other attachments which demonstrate
the showing the petitioner will make at a hearing of the change in
circumstances or new evidence.” (>Ibid.)
When assessing a section 388 petition, the juvenile court may consider
the entire factual and procedural history of the case. (In re
Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

2. >Mother failed to make a prima facie showing
that reinstating reunification services would be in the best interests of the
child

The trial
court summarily denied mother’s section 388 petition because she failed to make
a prima facie showing on the second element.
Specifically, the court found that mother had failed to make a prima
facie showing that reinstating reunifications services would be in the best
interests of the child.href="#_ftn7"
name="_ftnref7" title="">[7]

“Whether
[m]other made a prima facie showing entitling her to a hearing depends on the
facts alleged in her petition, as well as the facts established as without
dispute by the court’s own file (e.g., [the child’s] age, the nature of her
existing placement, and the time she came into care as a dependent
child).” (Angel B., supra, 97
Cal.App.4th at p. 461.) The
mother’s petition asserts that modifying the court’s termination of
reunification services would be in the best interest of the child because “I am
his mother and I believe I have changed and done everything asked of me in
order to be with my child again. And I
will never give up.” The petition does
not include any declarations or other forms of evidence that expand on these
conclusory assertions, nor does it cite to any evidence in the record.

The
juvenile court’s file shows that Raymond was only two-years old when he was
detained from mother and placed in the custody of the maternal
grandparents. During the two years that
passed between the child’s detention and the section 366.26 hearing (July
2010-July 2012), mother was incarcerated for five months (October 2010 to March
2011) and did not visit the child or contact DCFS for an additional three
months. In March of 2011, the child’s
therapist indicated that “he was not doing well” and suffered from anxiety
caused, in part, by mother “being in and out of his life.” After several months under the care and
custody of the maternal grandparents, however, the child became “much less
anxious and preoccupied with concerns about his mother’s love” because he had
developed “secure relationships with family members who meet his social
emotional and developmental needs.”
Although the record indicates that mother’s visits became more
consistent and meaningful after she became sober, she never had unmonitored
visits.

DCFS reported that Raymond was
“thriving in the home of maternal grandparents” and saw them “in the role of
parents.” DCFS also reported the
maternal grandparents “love[d] Raymond very much . . . and have cared for him
in their home since he was born. They
are attached to him and are committed to meeting his needs on a permanent basis
through adoption. . . .”

In >Angel B., supra, 97 Cal.App.4th 454, the court affirmed the summary denial of
a section 388 petition under similar circumstances. The parent in Angel B. had a “long history of drug abuse” and had “tried to
rehabilitate herself, without permanent success, on a number of
occasions.” (Id. at p. 459.) After the
juvenile court terminated the parent’s reunification services, “[s]he enrolled
in a residential drug treatment program, consistently tested clean for four
months, completed various classes, and even obtained employment. She had regular visits with [the child],
which went well. As a result, she
petitioned the juvenile court pursuant to section 388 to either grant her
supervised custody of [the child], or grant her reunification services.” (Ibid.)

The petition was accompanied by a
declaration providing information about the mother’s rehabilitation program,
the nature of her completed individual counseling, her future employment plans
and the frequency and quality of her visits with her child. The juvenile court, however, “summarily
denied the petition without an evidentiary hearing, and thereafter her parental
rights were terminated.” (>Angel B., supra, 97 Cal.App.4th 454.)

The
appellate court affirmed the summary denial based, in part, on mother’s failure
to demonstrate that modification would be in the best interests of the
child. The court explained that, after
reunification services have been terminated, “there is a rebuttable presumption
that . . . stability in an existing placement is in the best interest of the
child, particularly when such placement is leading to adoption by the long-term
caretakers. To rebut that presumption, a
parent must make some factual showing that the best interests of the child
would be served by modification.” (>Angel B., supra, 97 Cal.App.4th at p. 465.)


The court
concluded that mother’s petition had failed to allege any such facts: “The
facts presented by the . . . petition show that [m]other is doing well, in the
sense that she has remained sober, completed various classes, obtained
employment, and visited regularly with [the child]. In addition, we shall assume, for the sake of
this appeal, that this time her resolve is different, and that she will, in
fact, be able to remain sober, remain employed, become self-supporting and
obtain housing. Even so, such facts are
not legally sufficient to require a hearing on her section 388 petition.” (Angel
B., supra, 97 Cal.App.4th at pp.
464-465.)

The court
also noted that it would have been extremely difficult for mother to make a
prima facie showing that reinstatement of services would be in the child’s best
given that the adoptive parents had raised the child since infancy: “The [caretakers] clearly, by deed if not by
name, were [the child’s] parents. They,
not [m]other, provided [the child] with all the day-to-day, hour-by-hour care
needed by a helpless infant and then growing toddler. Thus, although [m]other’s petition states
that she has bonded with [the child], and that [the child] is happy to see her
and reaches for her on their visits, such visits, in total, add up to only a
tiny fraction of the time [the child] has spent with the foster parents. . . .
.[¶] Perhaps if [the child] were not
adoptable and [m]other was the only mother-figure in [the child’s] life, and
[the child’s] only hope of having a family in the future, the result might be
different. [Citation.] But those are not the facts presented
here. . . . [T]he juvenile court did not
abuse its discretion by denying the section 388 petition with no hearing.” (Angel
B., supra, 97 Cal.App.4th at p.
465.)

This case
shares many similarities with Angel B. The record indicates that mother had a drug
abuse problem for many years and was “unable to remain sober even when the
stakes involved . . . the loss of [custody] of her . . . child.” (Angel
B., supra, 97 Cal.App.4th at p.
463.) Raymond has spent his entire life
in the home of the maternal grandparents, who served as his primary caretakers
even before he was detained from mother.
According to Raymond’s therapist, the child has benefitted greatly from
the stability that his grandparents have provided.

Although mother has made
significant improvements since she became sober, these improvements came only
after the termination of reunification services. Moreover, mother did not file her section 388
petition until “the eve of the section 366.26 permanency planning hearing,” at
which point “the child[’s] interest in stability was the court’s foremost
concern.” (See In re Edward H., (1996) 43 Cal.App.4th 584, 594 [affirming summary
denial of section 388 petition filed “on the eve of the section 366.26
permanency planning hearing” because “at [that] point in the proceedings . . .
the children’s interest in stability was the court’s foremost concern and
outweighed any interest in reunification”].)


In sum, the
trial court did not abuse its discretion in concluding that the vague and
conclusory statements in the mother’s petition, considered in conjunction with
evidence in the record, did not establish a prima facie showing that the child
would benefit from reinstating reunification services.

>B. >Substantial
Evidence Supports the Juvenile Court’s Finding that Mother Did Not Have a
“Beneficial Parental Relationship” >

Mother also argues that the juvenile court erred when it
failed to apply the “beneficial parental relationship exception” to avoid the
termination of her parental rights. (See
§ 366.26, subd. (c)(1)(B)(i).)

>1.
Statutory
framework and standard of review

“‘Once
reunification services are ordered terminated, the focus shifts to the needs of
the child for permanency and stability.’
[Citation.] ‘A section 366.26
hearing . . . is a hearing specifically designed to select and implement a
permanent plan for the child.’ [Citation.]
It is designed to protect children’s ‘compelling rights . . . to have a
placement that is stable, permanent, and that allows the caretaker to make a
full emotional commitment to the child.’
[Citation.]” (>In re Celine R. (2003) 31 Cal.4th 45,
52-53 (Celine R.).)

At the section 366.26 stage of a
dependency proceeding, adoption is the preferred choice. (Celine
R., supra, 31 Cal.4th at p. 49; § 366.26, subds. (b) & (c).) “If it is likely the child will be adopted,
the court must choose that option–and as a result terminate the natural
parents’ parental rights–unless it ‘finds a compelling reason for determining
that termination would be detrimental to the child due to one or more’ of
[several] specified [statutory] circumstances.’
[Citation.]” (>Celine R., supra, 31 Cal.4th at p. 49;
(§ 366.26, subd. (c)(1)(B).).) These
“specified statutory circumstances–actually, exceptions to the general rule
that the court must choose adoption where possible–‘must be considered in view
of the legislative preference for adoption when reunification efforts have
failed.’ [Citation.].” (Id.
at p. 53.)

Section 366.26, subdivision
(c)(1)(B)(i) establishes an exception to the adoption preference where the
court finds, by substantial evidence, that “[t]he parents . . . have maintained
regular visitation and contact with the child and the child would benefit from
continuing the relationship.” “The
‘benefit’ prong of the exception requires the parent to prove his or her
relationship with the child ‘promotes the well-being of the child to such a
degree as to outweigh the well-being the child would gain in a permanent home
with new, adoptive parents.’
[Citations.]” (>In re K.P. (2012) 203 Cal.App.4th 614,
621 (K.P.).) “A biological parent who has failed to
reunify with an adoptable child may not derail an adoption merely by showing
the child would derive some benefit from continuing a relationship maintained
during periods of visitation with the parent.
[Citation.]” (>Angel B., supra, 97 Cal.App.4th at p.
466.) “No matter how loving and frequent
the contact, and notwithstanding the existence of an ‘emotional bond’ with the
child, ‘the parents must show that they occupy ‘a parental role’ in the child’s
life.’ [Citations.]” (K.P.,
supra, 203 Cal.App.4th at p. 621.)
“That showing [is] difficult to make in the situation . . . where the
parents have . . . [not] advanced beyond supervised visitation.” (In re
Casey D. (1999) 70 Cal.App.4th 38, 51.)

“Moreover, ‘[b]ecause a section
366.26 hearing occurs only after the court has repeatedly found the parent
unable to meet the child’s needs, it is only in an extraordinary case that
preservation of the parent’s rights will prevail over the Legislature’s
preference for adoptive placement.’
[Citation.]” (>K.P., supra, 203 Cal.App.4th at p.
621.)

On appeal
after a court has rejected a parent’s effort to establish the exception, two
different standards of review apply.
(See K.P., supra, 203
Cal.App.4th at pp. 621-622; In >re Bailey J. (2010) 189 Cal.App.4th
1308, 1314 (Bailey J.).) Since the parent must first show the
existence of a beneficial parental relationship, which is a factual issue, we
uphold a court’s express or implied finding that there is no beneficial
relationship if supported by substantial evidence.href="#_ftn8" name="_ftnref8" title="">[8] (See K.P.,
supra, 203 Cal.App.4th at p. 621.; Bailey J.,
supra, 189 Cal.App.4th at p. 1314).)
More specifically, a challenge to a court’s failure to find a beneficial
relationship amounts to a contention that the “undisputed facts lead to only
one conclusion.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) Thus, unless the undisputed facts establish
the existence of a beneficial parental relationship, a substantial evidence
challenge to this component of the juvenile court’s determination cannot
succeed. (Bailey J., supra, 189 Cal.App.4th at p. 1314.)

The second
requirement for the exception is that the beneficial parental relationship
constitute a “compelling reason for determining that termination would be
detrimental.” (§ 366.26, subd.
(c)(1)(B); K.P., supra, 203
Cal.App.4th at p. 622.) Although
grounded in the facts, the court’s determination on this issue is a
“‘quintessentially’ discretionary decision, which calls for the juvenile court
to determine the importance of the
relationship in terms of the detrimental impact that its severance can be
expected to have on the child and to weigh that against the benefit to the
child of adoption. [Citation.] Because this component of the juvenile
court’s decision is discretionary, the abuse of discretion standard of review
applies.” (Bailey J., supra, 189 Cal.App.4th at p. 1315; see also >K.P., supra, 203 Cal.App.4th at p. 622.)

>2.
The
trial court’s finding that there was no parental relationship is supported by
substantial evidence

The
juvenile court’s finding that mother failed to establish the existence of a
beneficial parental relationship is supported by substantial evidence. Some of the factors that are “considered when
looking for whether a relationship is important and beneficial are: (1) the age
of the child, (2) the portion of the child’s life spent in the parent’s
custody, (3) the positive or negative effect of interaction between the parent
and the child, and (4) the child’s particular needs.” (Angel
B., supra, 97 Cal.App.4th at p.
467.)

The record
shows that Raymond was detained from mother when he was only two years old and
has spent nearly half his life in the legal custody of his maternal
grandparents. Even prior to the child’s
detention, the maternal grandparents had served as his “main caregivers” and
had “been caring for him since he was born.”
The child spent his entire life in the grandparents’ home and “s[aw
them] in the role of parents.”

The record also contains evidence
that mother’s interactions with Raymond frequently had a negative effect on the
child. On numerous occasions, mother
became “angry” or “emotional” during her visits, which “upset” the child. DCFS reported that, even after detoxifying
from methamphetamine, mother continued to “act out in front of her son . . .
which [wa]s upsetting to him.”

Although the quality of mother’s visitations improved following
the completion of her drug treatment program, she never “advanced beyond
supervised visitation.” (See >In re Jeremy S. (2001) 89 Cal.App.4th
514, 523 (Jeremy S.) [establishing
parental relationship exception difficult “where the parents have . . . [not]
advanced beyond supervised visitation”] [overruled on other grounds >In re Zeth S. (2003) 31 Cal.4th 396,
413-414].)

In March of 2011, Raymond’s therapist reported that
the child was suffering from “anxiety” caused by “his mother being in and out
of his life so often,” was “preoccupied with concern that his mother
might not love him” and “feared being separated from his caregivers.” The child’s condition greatly improved under
the care of the maternal grandparents, who provided a “secure relationship”
that the child was previously lacking.

Finally,
the mother has pointed to no evidence indicating that the child “has any
particular needs that can be met by [m]other but not by the [adoptive maternal
grandparents].” (Angel B., supra, 97
Cal.App.4th at p. 468 [mother’s failure to identify any needs that could not be
met by adoptive parents supported juvenile court’s finding that the parental
relationship exception did not apply].)
The DCFS reports make clear that Raymond has thrived under the care of
his maternal grandparents, who have “done an excellent job of meeting the
minor’s needs” and are “committed to meeting his needs on a permanent basis . .
. .” Considered collectively, this
evidence supports the juvenile court’s finding that no sufficient parental
relationship existed between the mother and the child.

Mother,
however, contends that the undisputed evidence shows that she did in fact play
“a parental role” in Raymond’s life. In
support, she relies on evidence showing that, during her monitored visits, she
would “play with [the child], spend quality time with him, teach him right from
wrong, to count, sing his ABC’s and go over what he was learning in school.
” She also cites evidence showing that
she would “go swimming with him, . . , play puzzles . . . bathe him” and “was
well informed of [his] activities.”
Additional evidence in the record indicates that mother had a “strong
bond” with the child and displayed a “loving [attitude] towards” him.

However, to
meet the burden of proving that the beneficial relationship exception applies,
“the parent must show more than frequent and loving contact, an emotional bond
with the child, or pleasant visits.” (>In re Dakota H. (2005) 132 Cal.App.4th
212, 229.) “One can know a child’s
interests, enjoy playtime together, and be a loved relative, but not occupy a
parental role in the child’s life.” (>Jeremy S., 89 Cal.App.4th at p.
523.) For the exception to apply, the
parent must show that the “child’s relationship . . . transcend[s] the kind of
relationship the child would enjoy with another relative or family friend.” (Ibid.) Although the evidence in the record suggests
that mother acts lovingly toward Raymond and that the child may derive some
benefits from their time together, mother has failed to present any evidence
that the relationship has advanced to the point of “meet[ing] the child’s need
for a parent.” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [exception does
not apply where “the natural parent has maintained a relationship that may
benefit the child to some degree but does not meet the child’s need for a parent”].)href="#_ftn9" name="_ftnref9" title="">[9]

DISPOSITION

The juvenile court’s
orders are affirmed.





ZELON,
J.

We
concur:





WOODS, Acting P. J. JACKSON, J.